Friends of Merrymeeting Bay v. United States Dep't of Commerce

• Decision Date: 17 August 2011
• Docket Number: No. 2:11–cv–276–GZS.,2:11–cv–276–GZS.
• Citation: 810 F.Supp.2d 320
• Parties: FRIENDS OF MERRYMEETING BAY, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE et al., Defendants.
• Court: U.S. District Court — District of Maine

810 F.Supp.2d 320

FRIENDS OF MERRYMEETING BAY, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF COMMERCE et al., Defendants.

No. 2:11–cv–276–GZS.

United States District Court, D. Maine.

Aug. 17, 2011.

Bruce M. Merrill, Portland, ME, Charles C. Caldart, Seattle, WA, David A. Nicholas, David A. Nicholas, Esq., Newton, MA, Joshua R. Kratka, Boston, MA, for Plaintiffs.

Bradley H. Oliphant, U.S. Department of Justice, Washington, DC, John G. Osborn, U.S. Attorney's Office, Portland, ME, for Defendants.

ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

GEORGE Z. SINGAL, District Judge.

Before the Court is Plaintiffs' Motion for Preliminary Injunction (Docket # 7), which was filed on July 25, 2011. The Court held a hearing on August 12, 2011 after receiving expedited briefing. For the reasons that follow, the Court now DENIES the Motion for Preliminary Injunction.

I. LEGAL STANDARD FOR PRELIMINARY INJUNCTION

Plaintiffs, as the moving party, bear the burden of persuasion to show: “(1) the likelihood of success on the merits; (2) the potential for irreparable harm if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court's ruling on the public interest.” Iantosca v. Step Plan Servs., Inc., 604 F.3d 24, 29 n. 5 (1st Cir.2010) (citation omitted). Likelihood of success on the merits is the “most important part of the preliminary injunction assessment.” Jean v. Mass. State Police, 492 F.3d 24, 27 (1st Cir.2007). Even if likelihood of success is low, a court might consider injunctive relief based on a very significant showing of irreparable harm. See Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir.2001) (explaining that the preliminary injunction “process involves engaging in ... the sliding scale approach; the more likely the plaintiff will succeed on the merits, the less the balance of irreparable harms need favor the plaintiff's position”). However, a showing of irreparable harm must be “grounded on something more than conjecture, surmise, or a party's unsubstantiated fears of what the future may have in store.” Charlesbank Equity Fund II v. Blinds to Go, 370 F.3d 151, 162 (1st Cir.2004). Ultimately, the Court must “bear constantly in mind that an ‘[i]njunction is an equitable remedy which should not be lightly indulged in, but used sparingly and only in a clear and plain case.’ ” Saco Def. Sys. Div., Maremont Corp. v. Weinberger, 606 F.Supp. 446, 450 (D.Me.1985) (quoting Plain Dealer Pub. Co. v. Cleveland Typographical Union No. 53, 520 F.2d 1220, 1230 (6th Cir.1975)).

II. BACKGROUND

This dispute surrounds a construction project currently underway at the Worumbo Hydropower Project on the Androscoggin River in Lisbon, Maine (the “Worumbo”). The Worumbo is a hydroelectric dam owned and operated by a private company, Miller Hydro Group (“Miller Hydro”), under a Federal Energy Regulatory Commission (“FERC”) license issued under the Federal Power Act, 16 U.S.C. § 797(e).¹ FERC's Office of Energy Projects, Division of Dam Safety and Inspections administers FERC's dam safety program and has broad supervisory and inspection authority for all licensed dams. See 18 C.F.R. § 12.4(b).

The Worumbo is located in the geographic range and designated critical habitat of the Gulf–Of–Maine Distinct Population Segment (“GOM DPS”) of Atlantic salmon, a species listed as endangered under the Endangered Species Act (“ESA”) by Defendant National Marine Fisheries Service (“NMFS”).² The final rule listing the GOM DPS Atlantic salmon as “endangered” under the ESA was issued on June 19, 2009. 74 Fed.Reg. 29,344 (June 19, 2009).³ The GOM DPS includes all anadromous Atlantic salmon whose freshwater range occurs in the watersheds from the Androscoggin River north along the Maine coast to the Dennys River. Id., It also includes all conservation hatchery populations used to supplement these natural populations. Id., The GOM DPS has rarely exceeded 5,000 individuals since 1967. Id.,

The record provided to the Court indicates that on April 28, 2011 a teleconference was conducted between a representative from Miller Hydro, FERC staff, and Jeff Murphy, a Fishery Biologist and NMFS staffer, regarding the Worumbo and plans for its more than 100–year–old timber crib spillway. ⁴ Mr. Murphy is the “NMFS staffer responsible for Atlantic salmon Section 7 consultations with the [FERC],” and was the individual who “consulted informally with the FERC to determine whether formal consultation pursuant to Section 7 of the ESA would be needed for the proposed repairs of the Worumbo....” (Murphy Decl. ¶ 3; see also id. at ¶¶ 1–2 (listing specific title and responsibilities under Section 7(a)(2))).

The next day, Miller Hydro sent a letter to Gerald L. Cross, Regional Engineer for FERC's Office of Energy Projects: Division of Dam Safety and Inspections, formally notifying FERC “that Worumbo crib dam has reached the end of its useful life and needs to be replaced now.” (Am. Compl. Ex. 1 (Docket # 19–1) at PageID 179 (hereinafter the “Miller Hydro letter”).) In this letter, Miller Hydro conceded that it could not predict precisely when, or how, failure would occur, but warned that “it is impossible to guarantee or even provide reasonable assurance that the dam will not fail if construction is delayed to 2012 or beyond.” ( Id., at 179–80.) As the failure of the dam could present “a hazard risk” to downstream fishermen, recreationists, property and the environment, Miller Hydro wrote that time was of the essence: any such construction project “could only be undertaken during the low water season that normally runs from July through September.” ( Id., at PageID 179–80.) To this end, Miller Hydro relayed that it had “been in active discussion with [FERC], the Army Corps of Engineers (ACOE), and [NMFS],” and that it was its understanding that “ACOE is only awaiting sign off from NMFS under the ESA to issue the necessary permit.” ( Id., at PageID 180.) Miller Hydro went on to state that, in accordance with its prior conversations with NMFS, it had already made a number of modifications “to the permanent structure to improve its features for Atlantic salmon” and that it would continue to “work with Maine Department of Marine Resources to provide adequate downstream by-pass flow during the construction period.” ( Id.,)

On May 2, 2011, B. Peter Yarrington, a Fisheries Biologist with FERC, emailed Mr. Murphy to inform him that he is in receipt of the Miller Hydro letter and that “[i]t seems to have the elements discussed in our [teleconference call last week].” (Am. Compl. Ex. 10 (Docket # 19–10) at PageID 222.) Mr. Yarrington went on to ask whether “there is anything specific I need to write in the letter to you, besides that we agree with the licensee's determination, and that we would like to proceed with emergency consultation?” (Am. Compl. Ex. 10 (Docket # 19–10) at PageID 222.) There is nothing in the record to indicate whether or not Mr. Murphy responded to the specific requests made by Mr. Yarrington in this email.

On May 4, 2011, however, Mr. Cross sent a letter on behalf of FERC to Mr. Murphy, to which he attached the Miller Hydro letter. ( See Am. Compl. Ex. 1 (Docket # 19–1) at PageID 177–78 (hereinafter the “FERC letter”).) In this letter, Mr. Cross notes that the “April 29, 2011 letter from the dam owner conveys the sense of urgency for replacing the existing timber crib spillway with a concrete gravity structure as soon as possible,” and states expressly that “FERC concurs with the urgency expressed by the owner, and as such, believes that the spillway should be replaced during the construction season this summer.” ( Id., at PageID 177.) Thus, based on its related assessment that “[a] failure of the Worumbo Dam would result in significant environmental consequences and could also produce serious public safety consequences and property damage,” FERC was writing this letter to NMFS to “request[ ] formal consultation under the [ESA] using the emergency consultation procedures specified in NMFS's joint regulations at 50 C.F.R. 402.05.” ( Id., at PageID 177–78.) ⁵ The letter goes on to explain that “[e]mergency consultation is warranted for this project because of the dam safety concerns ..., and because work needed to remedy these concerns must begin by the low water period of the summer of 2011 which is too soon to complete standard formal consultation under the ESA.” ( Id., at PageID 178.)

In a May 9, 2011 email to Mr. Yarrington, Mr. Murphy accepted FERC's May 4, 2011 request for emergency consultation. Specifically, Mr. Murphy writes: “Given the emergency nature of the repairs, NMFS can confirm that emergency consultation procedures outlined under 50 C.F.R. § 402.05 are appropriate for this situation.” (Am. Compl. Ex. 10 at PageID 222.) Mr. Murphy goes on to state that NMFS will “continue to work with [Miller Hydro] to minimize the environmental impacts including those to listed Atlantic salmon during the repairs.” ( Id.,) He also instructs FERC that “[o]nce construction is completed,” it “should submit a biological assessment to NMFS describing the nature of the emergency, the justification for the expedited consultation, a description of the work, and any impacts to listed Atlantic salmon and designated critical habitat,” which NMFS will then evaluate to issue a Biological Opinion to FERC. ( Id.,)

On July 12, 2011, FERC's New York Regional Engineer issued a construction authorization order (“FERC Order”) to its licensee, Miller Hydro.⁶ Pursuant to this FERC Order, Miller Hydro plans to remove a 520–foot long timber crib spillway at the Worumbo and replace it with a new dam just downstream from the current dam. (Am. Compl. Ex. 4 (Docket # 19–4) at PageID 192; Am. Compl. Ex. 9 (Docket # 19–9) at PageID 214.) On or about July 15, 2011, Miller Hydro commenced...